Wardle v Fowler No. DCCIV-99-46

WARDLE v FOWLER
[2002] SADC 15
Judge Herriman
Civil
INTRODUCTION

The plaintiff sues for damages for personal injuries suffered by him in a motor vehicle accident on 20 January 1996 on Main Road No. 96 at Cudlee Creek.
In the afternoon of that day, the plaintiff was riding his motorcycle in a southerly direction along Main Road No. 96 and was negotiating a crest coupled with a bend in the roadway, when he collided with the defendant’s truck, which was travelling in the opposite direction along that road.
On all accounts, the collision was a glancing blow and the plaintiff did not fall from his motorcycle, but it is not disputed that he suffered personal injury in consequence of it.
For the purposes of the trial and these reasons, it should be assumed that Main Road No. 96 travels in a north‑south direction, but, having said that, it was common ground that the impact was at some distance south of a crest on the roadway and that, for a driver travelling southwards, the roadway curved to the left, or east, as it descended from that crest.
The matter came on before me for a determination as to liability only, and the real issue was as to the location of the point of impact: how far was it south of the crest and was it on, or to the east, or the west, of the centre lines of the roadway?
For his part, the plaintiff contended that that point was approximately eight metres south of the crest and on his correct side, albeit near the centre lines of the roadway. The defendant denied this and said it was some 20 metres south of the crest and approximately two metres into his, or the western, carriageway.
The fixing of that point was critical in my determination of liability and I will now discuss the evidence relating to it.
THE PLAINTIFF’S CASE
David Wardle
The plaintiff gave evidence. He is a truck driver and is now 37 years of age. At the time of the accident, he was riding a Ducati 900 sports motorcycle. He had owned it for some three to four years and it was used for both work and recreation. He generally rode it, recreationally, in the Hills and on weekends, and sometimes he would travel considerable distances. Sometimes he would ride by himself and sometimes with others. He was familiar with Main Road No. 96 and had ridden on it many times before, as often as once per fortnight, and in both directions.
He was particularly aware of the bend and crest on which the accident occurred and described it as a “marked point” (p.23). He remembered it well, because of an accident involving a riding companion of his, Paul Jackson, which had occurred there within 12 months before the subject accident. On that occasion, he had been riding with Jackson in a northerly direction along Main Road No. 96, and had passed the bend, but had then looked back to check his friend was with him. He had seen him literally flying through the air, having come off his bike on the bend. He had gone back and spent an hour at the scene, examining the bend and noticing how dangerous it was. Jackson had not been seriously injured.
He had met Jackson at a motorcycle shop, which they both patronised and which ran fundraising activities related to motorcycle riding. He said that that particular stretch of roadway was frequently spoken about by members of the club.
The accident occurred at 3 or 4 p.m. on 20 January 1996. The plaintiff was then living at Parafield Gardens and had set off from there with another friend, Andrew Fidock, who was on his own motorcycle. They were intending to ride for a few hours in the Hills. He said that at the time of the accident, they were both travelling in a southerly direction along Main Road No. 96 and Fidock was ahead of him. He identified the scene from various photographs which were contained in Exhibit P3 and described how, as he approached the crest from the north, his speed was about 80 kilometres per hour and he was positioned in the centre of the southbound carriageway. As he got closer to the crest, he moved his cycle towards the right of his lane and the centre of the roadway, to give him more room to negotiate the crest and the left‑hand bend which followed it. He said that was a standard practice. He also decelerated to a speed he estimated at 35 to 40 kilometres per hour. He said that just prior to the crest, there is a speed advisory sign suggesting a speed of 35 kilometres per hour.
As he began to turn through the left-hand bend at the crest, he saw the defendant’s truck approaching him on its incorrect side of the roadway. Accordingly, he tried to make his left‑hand turn a tighter one, but he was unable to do that. He remembered feeling some impact with the truck and being surprised that he was still upright on his motorcycle afterwards. He felt pain in his right hand, which was gripping the right handlebar of the motorcycle. He looked down to see that the glove he had been wearing on it was shredded and pinkish flesh was exposed. At about that time, he felt pain in his right leg and he looked down to see a lump of flesh hanging from just below his knee and outside his riding boot. It was flapping and dripping blood. He then said he tried to slow down by applying the right‑sided handbrake, but he then realised that the brake lever had snapped off. He tried to push his right toe onto the foot brake pedal, but seemed to be unable to exert any pressure on it. Accordingly, he raised his whole right leg from the rest pedal and moved it forward so as to place his right heel on the brake pedal. He was then able to use that heel pressure to bring his motorcycle to a halt. He could not say whether that heel braking caused the rear wheel to lock at any stage, but he recalled that he slowed down gently and, as he did so, guided his motorcycle over to the left‑hand side of the road, stopping it beside a steep earth embankment which descended to the roadside verge. He identified that embankment in photograph 24 of P4. About four to five feet up it, was a fence.
He said that after he stopped, he had a screaming fit for a few seconds, because he then saw the damage to his right leg, which he thought was life‑threatening, due to blood loss. His riding boots came up to about three inches below his knee, yet the impact had somehow torn away flesh from part of his lower leg extending well below the top of the boot, and it was hanging outside the boot.
He thought that he had to do something urgently to staunch the blood flow. He threw his helmet off and swung his left leg over his bike so that he was sitting side‑saddle on it. He said that people then approached. A belt was put tightly around his leg and a T-shirt was used in an attempt to stem the blood flow, but it was ineffective. He thought it would help stop the bleeding if he were to raise his right leg, so he turned, placed his shoulders on the bike and hooked both feet on the fence above him. The tourniquet was half‑way up his thigh. By this time, there were several people around him and some were consoling him.
An ambulance then came and he was taken to the Royal Adelaide Hospital.
He identified some photographs of his motorcycle (P2) and said the horizontal gouges on its right‑hand fairing had been caused by the accident. There was also a cavity in its upper front and that had previously contained the right‑hand turn indicator, which was missing after the accident. He said his bike had been new in late 1994 and had done about 20,000 kilometres at the time of the accident. It was in excellent condition. He identified, in photographs, certain areas where blood had congealed on the motorcycle frame.
He was asked to describe the circumstances of his view of the truck immediately prior to the accident and he said that as he came over the crest, he saw that the double white lines in the centre of the roadway were disappearing under the front of the truck as it came towards him.
In cross‑examination, he acknowledged that he had previously owned two motorcycles, 500cc and 250cc models. He agreed that fundraising undertaken by the motorcycle shop was to support bike racing at Mallala. He had himself tried that once, but had no wish to do it again and he simply enjoyed watching it. He said that on the day of the accident, he and Fidock were going nowhere in particular; they were just driving in the Hills. They had had nothing to drink. Fidock was not a particular friend and this was the first time they had ridden together. When he had last seen Fidock, the latter was about 200 metres in front of him. He did not see Fidock go through the bend, however, and could not say at what speed he passed through it. He agreed that as one got to the crest travelling in a southerly direction, the roadway turned sharply to the left. He agreed that the north and southbound lanes were fairly narrow, but he did not know whether there was any difference in their width. The weather was fine and visibility was good.
He was first aware of the truck just before he reached the crest and, at that stage, from his position on the motorbike, he could see where its wheels were. The body of the trunk was straddling the barrier lines and extended to his side of the roadway by some two to three feet, but he could not estimate the truck’s speed. It was not slow and it was not excessive. He could not say whether it was travelling at 25 to 30 kilometres per hour, because he had a very limited opportunity to see it before the collision. He said he had not attempted to evade it by pulling the handlebars to the left. He said the preferred method of doing this was, rather, to lean one’s body the other way, that is, to the right, but he was not sure whether he had been able to do that, because of the limited time he had had.
He agreed that a motorcyclist entering a bend as he did would generally line up his bike and intended passage before the bend. He agreed that that was harder to do when one could not see the roadway ahead, even if one knew the roadway. He agreed it was possible to miscalculate in doing that, but that was why he had reduced his speed. He was unable to say whether the truck took any evasive action, but he did not see anything happen. When he first saw it, it was a distance away he estimated as the width of the courtroom. He said he thought that his hand had made contact with the rear of the tray on the truck. It was forceful, but it did not throw him off. It was enough, however, to have fractured two fingers, cut others and fractured the handbrake lever.
He did not know whether the force of the impact threw him to the left or not, but he did have to steer the motorcycle to regain control. He was unable to recall whether the blows to his hand and his leg were simultaneous or successive, nor could he say precisely how he was able to regain control after the collision. His reaction after realising he was injured was to attempt to get over to the left-hand side of the roadway and stop, but not too quickly. He described the impact as more of a glancing blow, but not enough to throw him off. He said that the skin which came away from his right leg extended down to his ankle. His jeans were ripped, but his boots were not. He recalled trying to poke the flesh back in. He described his action in applying the brake with his heel as involving lifting his whole leg and standing on the brake with his heel, but he could not say whether that caused the bike to skid. When he came to rest, he could not see the truck. He was upset, thinking that the truck driver had left the scene, but he was more worried about his own condition.
He then spoke of the two witnesses Mr and Mrs Clyma. He had not known them before the accident, but had met them a couple of times since. They had taken photographs of the scene and given them to him. He did not get details from them at the scene, but they came to see him in hospital some time later.
He was tested on the position of the defendant’s vehicle on the roadway, but adhered to the view that it was two to three feet over to his own side. He rejected the suggestion that as he entered the left-hand bend, his motorcycle crossed the centre lines and was on the northbound carriageway. When he saw the truck, he said, it was about three‑quarters of the way around its right‑hand turn and just about to reach the crest. The impact was just south of the crest. It was put to him that the impact was not there at all, but at a point where he exited the bend, some 30 to 35 metres north of Sunning Hill Road. He disagreed with that.
He did not observe any skids or markings on the roadway and did not look at the roadway at all after the accident. It was put to him that as he decelerated in the bend, his speed was greater than 35 to 40 kilometres per hour. He said:
“It might have been a couple more but that would be it. It wouldn’t be either 50, 60, 70 km/h or something like that.” (p.57)
He said that immediately after the impact, as he became aware of the loose skin flapping from his lower leg, he was still travelling at about the same speed as before, but said he then applied his brake in the way described and slowed down gradually before pulling off to the side. It was suggested to him that the natural deceleration of his bike would have brought it to a halt at about the distance he stopped, anyway. He said it was possible, he would not be able to say. He thought the piece of flesh flapping from his leg was about a foot long.
Liann Clyma
Mrs Clyma next gave evidence. She is a personal assistant and married to Trevor Clyma. On 20 January 1996, she and her husband were travelling from Basket Range to Kersbrook in a northerly direction along Main Road No. 96. They entered that road from Gorge Road, making a right‑hand turn as they did so. They were in the habit of traversing that route a few times a week in order to visit a home they were building at Kersbrook. Her husband was driving an early model Laser and she was in the front passenger seat. She then saw the plaintiff sitting on his motorcycle, which was leaning against an embankment off the roadway. He was astride the bike. She heard him screaming and it was that which attracted her attention. They were level with him when she saw him. She saw no other vehicles in the roadway ahead of her at that moment. She noticed that the motorcyclist’s leg was gory and was bleeding from a wound.
Her husband immediately turned into a private driveway, some metres north of the position of the motorcyclist, a driveway which was indicated in the photographs as being the entrance to the house premises to the east of the roadway. She described her actions:
“I got out of the car and ran straight up to the house to call an ambulance and my husband went in the other direction to assist the plaintiff.” (p.63).
At first, she thought nobody was at the premises and it took a short while for her to attract attention, but she then went inside and rang from the house telephone.
On returning to the scene and as she reached the bottom of the driveway, she saw a man approaching the scene from her right. When she got back to the plaintiff, he was lying on the ground with his leg against the fence and his head was pointing towards the road. Her husband was with him and there was another motorcyclist there and a woman, as well. She did not know any of them. She felt unable to look much at the wound, but gave a brief description of it. She said she had a conversation with a man and a woman at the scene.
She was then asked whether she saw any other motor vehicles in the general vicinity. She said the only vehicle she saw was a van, which pulled up behind their vehicle in the driveway. She had not seen who had assisted the motorcyclist and put him into the position he was in, but she described a rope around his leg. She said another motorcyclist arrived afterwards and the plaintiff had a conversation with him.
Later, when the ambulance arrived, she assisted by going southwards along the road to warn oncoming vehicles of the accident. To do this, she walked down to the first bend in the roadway. She thought somebody else went in a northerly direction to do the same thing. She thought the man and the woman whom she had seen, stayed near the motorcyclist. She later heard the injured man screaming, when the ambulance was there.
After it left, she returned to the plaintiff’s motorcycle. She said there was a lot of blood and flesh on it. She looked at it only once. She noticed there was a blood trail on the roadway near the motorcycle. She thought there was a lot of blood. It was red and fresh or wet. She described it as a “thick trail” (p.68). There was some discussion about what to do with the motorcycle and another person there said he would take care of it.
She said she and her husband then walked up the road towards the crest “to take in what had happened” (p.68). She said people in the house from which she had telephoned had also come down to the scene and they also walked up the road with her and her husband. She thought there were two of them at that point. She did not know what nationality they were, but they had heavy accents. There were two men, one was in his fifties and the other in his seventies.
She and her husband and the two people from the house actually walked up the roadway together and were discussing the blood trail and following it. It was thicker near the resting point of the motorcycle. From there, it went out towards, but not over, the centre lines of the roadway and, as it went uphill from there, the blood droplets became further apart, until they ceased altogether at a point which, she said, was “quite clearly on the eastern side of the white line” (p.70). She described the direction of the trail as veering from the position of the motorcyclist towards the centre of the southbound lane and then straightening up and running parallel with, but to the east of, the centre lines of the roadway. She said it never got closer to the centre lines than about 50 centimetres to their east and it did not cross them. She said she and her husband stopped at the point where the blood trail appeared to commence and they were talking amongst themselves and with the two people from the house. That was at a point “virtually in the vicinity of the crest” (p.71).
As they walked up the hill, she also noticed a reflective piece of material and some mirror fragments, a brake lever and some orange glass. They went back to look at them afterwards. They also looked carefully at skid marks on the southbound lane of the roadway and south of the crest. She said that, as they walked north following the blood trail, “quite a way off from where we were standing, there was a white small truck parked on the western edge of the road, probably between 50 and 80 metres from where we were standing” (p.72). She clarified that by saying that she made that observation when they were standing at the crest and the vehicle was parked north of the crest.
She said that as they were talking at the crest, she became aware that the man and the woman who had arrived at the accident scene after they had, were also there. Before she realised that, however, she had remarked to her husband, in the presence of the two men from the house, that the accident must have been the truck driver’s fault because the blood was entirely on the plaintiff’s side of the road. At that moment, the man who had accompanied the woman there, presented himself and said words to the effect of “I wasn’t on the wrong side of the road. I came around the bend and he was just there” (p.116). There was no cross‑examination on that matter.
She said how she and her husband went back to the scene on the Monday following the accident, because they were again travelling to Kersbrook, and they took some photographs of it. She used her own camera and identified the bundle of photographs in Exhibit P2. She had captioned them herself and they identified, amongst other things, the position where the motorcycle came to rest by the embankment; the blood trail near that position; certain skid marks on the roadway, which she had then thought relevant; the driveway where they parked their vehicle; particular views of the crest from each direction; a faded arrow marking on the roadway; mirror glass, which she believed to have come from the plaintiff’s motorcycle; and a photograph of her husband standing in a position south of the commencement of the blood trail. There were also photographs of other items, of orange‑coloured glass and a whitish object, which again she had thought were from the plaintiff’s motorcycle. The latter object, she said, was found near the point where she saw a handbrake lever.

She identified various other features of the photographs and the positions from which they were taken. She had also photographed an object in the creek bed beneath the bridge.
She said how she and her husband later visited the plaintiff in hospital and gave him the book of photographs with its legends. She said she had never met the plaintiff before, but since then, had seen him at one site inspection connected with the case and at a couple of parties, although on the latter occasions, he had not recognised her.
She described how she revisited the scene in March 2000 with an adjuster, Mr Craig Coulter, and how she pointed out to him the position where the blood trail had commenced, although, by then, there was no evidence of it on the roadway. She said she was able to fix that position:
“By being at the site and standing in the same position as we were when the accident had happened on the same day, we felt that we were standing in the same position where we had gathered and said, ‘Well, this is the start of the blood trail’ ... We made reference to the photographs that we’ve just been through and matched that up to what we could see while we were there: trees and signposts and markings on the road.” (p.84)
She was asked whether she took any bearings to fix that point and she replied:
“Yes, because on the day of the accident when we walked backwards to survey the scene, we felt that the blood trail started at what seemed to be at the time the most likely position an accident would happen on a blind corner on a crest, so by standing in that position we felt that was the right place.” (p.84)
She said she fixed that position for Coulter by relating back her memory to the day of the accident, that is, to where she stood on that day, by reference to the photographs P2 and by her recollection from that day that the blood trail had begun in the most likely position for such an accident to occur.
On that same occasion, she pointed out to Coulter the position where the motorcycle came to rest and the position where the various fragments were on the roadway.
She said that on the day of the accident and after walking to the commencement of the blood trail, she and her husband had continued on to the white truck and she had then noted that its tray projected out from each side of the cab by about eight inches, a position further out than the position of its wheels. She recalled there was a white rail suspended from the tray and what looked like a metal box underneath it on the driver’s side.
She could not recall seeing any blood on the truck. She tried to see what part of it might have come into contact with the plaintiff’s leg, but “there wasn’t anything to really give it away” (p.87).
In cross-examination, she agreed she had discussed the circumstances of the accident with her husband on that day and also on the following Monday. She said she could not recall what details she had discussed with Mr Wardle when they had gone to see him in hospital, but they had not been there for very long and “didn’t go into any great detail about it” (p.89). He did not seem to recall who they were, then, and they had to explain their part in it.
She described the two men who appeared to come from the nearby house. She did not know whether they lived there. She said she had had the photographs developed promptly and captioned them, believing at the time that the skid marks and debris were relevant to the accident. Later on, she was told that the plaintiff had not applied his brakes. She thought she had probably been told this at the first site inspection, so she then assumed that the skid marks she had seen were not relevant. She accepted, when told, that the piece of silver debris was not part of the plaintiff’s headlight. She had incorrectly referred to it as such. She said she was not an expert and it had been simply an assumption on her part. She said that she had travelled through the bend frequently and had ridden through it as a pillion passenger at a time when her husband had owned a motorcycle. She could not describe the make of the van which pulled up behind her car in the driveway, but she called it a “people mover”.
In speaking about the blood trail, she said there was no spray of blood at any point. Although there were some smaller drops, she disagreed with the proposition that there was a fine spray of them near the commencement of the blood trail. She was confident about the position where the blood trail commenced, because there was no blood further north from that position and they had walked in a northerly direction another 50 or 80 metres down to the truck. The drops of blood were generally of a consistent size, she said, but came closer together as they approached the position of the motorcycle. She said the blood trail was still present on the roadway on the Monday after the accident. It had not faded, but was no longer wet.
She agreed her legend was wrong to the extent it associated the two skid marks with the accident. She also agreed she was mistaken about the relevance of certain of the debris she had seen and recorded on or near the roadway. She had looked at the plaintiff’s bike only briefly, because the presence of flesh and blood on it put her off. She thought she had seen that the right‑hand mirror glass of the motorcycle was broken.
She said that on the Monday, she actually took a photograph of the commencement of the blood trail, “but due to the shade and the shadows and the time of day, it didn’t turn out, so that would be on the negatives, but didn’t make out anything” (p.99). She had given all negatives to the plaintiff. That was the only photograph that was not contained within the exhibit. She said the only debris she attempted to photograph was that which appeared to be new.
She was able to say from the photograph that the position of the amber debris on the roadway was near to where the blood trail commenced and she could do that from memory, as well. The brake lever was within a metre or so of the white material shown in photograph number 10, but south of the crest and the left‑hand bend.
She was cross‑examined at length on the position of the skid marks in connection with the blood trail, but, in the end, I am satisfied that nothing turns on the position of the skid marks on the roadway. There was simply insufficient evidence linking them to the plaintiff’s motorcycle. She was ready to agree that her assumptions as to the relevance of the skid marks and the debris were in a number of respects mistaken. In fixing the point of impact for Coulter’s purposes, she repeated that she relied on her memory, the photographs and her recollection of the view afforded by standing in that position. Photograph 8 of P2 refreshed her memory, not just from the position in which her husband was standing in the photograph, but from trees in the locality.
She affirmed there was no fine spray of blood on the roadway near the commencement of the trail and that the blood trail never crossed the white lines onto the western side of the roadway. She said about this, “I am absolutely sure. I am so sure that I thought I was wasting my time taking these photographs because the matter wouldn’t end up in court. It seemed very cut and dry at the time” (p.111).
It was suggested to her that the blood trail had not run parallel to the centre lines, but had deviated from the western to the eastern side of the carriageway towards the point where the motorcycle came to rest. She denied that. It was put to her that she had reconstructed the point of commencement of the blood trail when she revisited the site three years later with Coulter. She denied that and said she remembered the accident and its aftermath vividly.
It was suggested to her that after the accident, the defendant’s truck had been parked between the crest and Sunning Hill Road, but she denied that. She thought her estimate of the tray projecting some eight inches was reasonably accurate.
Trevor Clyma
Trevor Clyma, the husband of Liann Clyma, described how they were driving on Main Road No. 96 to their property at Kersbrook, when he saw the plaintiff sitting on a motorcycle by the side of the road, but leaning on the roadside embankment. His attention was attracted by the plaintiff’s screaming. He turned their car into the driveway off to the right, just past where the plaintiff’s position was. He did not see any other vehicles ahead of his car at this time.
Upon his stopping their car, his wife went up the driveway towards a house and he ran down to the motorcycle. He was the first one there, but somebody arrived soon afterwards, a young man who was riding past on a motorcycle and stopped to offer assistance. He said that after that young man, two other people “came down” (p.127), a man and a woman. He thought they were the truck driver and his wife. He said not long after they arrived, another motorcycle rider came back, who appeared to be a friend of the plaintiff and had apparently been riding with him.
When he first came upon the plaintiff, he saw the injury to his leg and thought he was in shock. The plaintiff was screaming “Get me a tourniquet” and took his jacket and helmet off. Mr Clyma and the first motorcyclist manoeuvred him off his bike, in effect by pulling the bike from under him. They then turned him to the side and put his leg up on a wire fence on the embankment in order to prop it up. The young motorcyclist then took off his shirt and tied it to the plaintiff’s leg as a tourniquet and Mr Clyma, himself, went back to his car to get a piece of rope for the same purpose. Nobody else was present at that stage, but afterwards, his wife, the man and woman, and the plaintiff’s friend arrived at the scene. The driver of the truck then went back to his wife’s car “and pulled out an old greasy curtain or a blanket or something it was, but it had bits of grit and grease on it. We told him not to put it over his leg, so he put it over his body without covering the leg” (p.132).
He described the plaintiff’s injury, upon his first view of it, in these terms:
“... the whole side of the leg was ripped out, so you could actually see the bone and everything in there, and the flesh was sitting on his back wheel” (p.128),
although it was not bleeding profusely at that stage.
He described how the ambulance officers later arrived and put nearly two full packets of gauze on the leg. He remained there the whole time until the ambulance left.
He and his wife then walked northwards up the road, following a trail of blood from the plaintiff’s motorcycle. It had begun with a “big mass of blood” near the motorcycle and gradually diminished as they walked northwards. It was fresh and red. It veered out into the eastern carriageway from where the motorcycle had come to rest and then ran parallel to, but east of, the centre lines. As it continued towards the crest, the trail stayed about 30 to 50 centimetres to the east of the double centre lines and it was “virtually just that all the way until the last drop” (p.130).
When they got near the top of the crest, he realised that the truck driver and his wife were walking behind them. He said he was “pretty sure the people from the house were actually there as well” (p.129) and either walked with him and his wife, or perhaps just behind them.
At that point, that is, the point where the blood trail began, there was discussion between himself and his wife about its position, but he did not recall whether anybody else participated in it, although they might have. That point was 30 to 50 centimetres east of the eastern centre line and south from the crest of the hill, but “no more than a metre or two, it wasn’t very far from the top. You couldn’t actually see over it ...” (p.132) (i.e. the crest). Subsequently, he walked further north from that point to see where the truck driver had stopped his truck. It was parked about 50 metres north and downhill from the crest on the western side of the roadway and it was facing north. That was the first time he had seen it and they went up to it. It had a cab and a tray that “stuck out 6 or 8 inches from each side of the cab” (p.142). The tray was flat and it had either a toolbox or “a spare wheel or something” (p.142) beneath it. He did not see any blood on it, but, at that moment, “the truck driver and his wife were getting a bit hysterical and agitated” (p.143). He could not see any other marks on the truck, either, but described it as a “pretty old rough and tumble thing” (p.143). It looked like a builder’s ute and had construction materials on it.
He said he saw bits of debris over the roadway, including a part of a headlight and a piece of mirror, and he and his wife believed most of them were associated with the collision because they looked new and because “most of the pieces were on the east side of the road and we just put two and two together, I think” (p.133). At that time, he also thought some skid marks on the roadway were associated with the accident.
He described his return to the accident scene on the following Monday and how his wife took some photographs, which he identified. He went on to describe particular features of the topography. He had had no input into the captions beneath the photographs, but he had had “some say as to where things were and everything” (p.136). At no time had he seen, on the day of the accident, a white truck stationary on the western side of the road and south of the crest.
He identified himself in photograph number 8 of Exhibit P2 and said that when standing in that position, he was at the point of commencement of the blood trail: “That was the point of our photo, I think” (p.138). He was asked whether, on that Monday, he was still able to see blood on the surface of the road and he said they were able “to see some but not right at the end” (p.138). That observation is of some significance because none of the photographs P2 display it.
He thought the pieces of orange glass on the roadway were significant because they were “practically right near the start of the blood droplets” (p.140) and because they may have been associated with the plaintiff’s motorcycle. Likewise, he thought the piece of headlight was associated with the bike because it was new and had not been weathered. He also saw the brake lever, but he could not remember it being photographed. He spoke about the other items of debris and how they appeared to be fresh.
He said he and his wife took the photographs to the plaintiff in hospital because they thought he might need to use them. They were with him for 10 to 15 minutes. They had not known him before and he did not see him afterwards, except that he recalled later going back to the scene with the plaintiff, his solicitor and an adjuster. He said he and his wife had, on that later occasion, pointed out certain things to that adjuster, Mr Coulter, i.e. “only what we had seen on the photos and what we could remember seeing - taking” (p.144).
He agreed that he and his wife had pointed out to Coulter the point on the roadway where the blood trail had commenced. He said he was able to fix that point later because:
(1)he had previously “noticed trees on the eastern side of the road and plus from where the indicator light pieces were in that vicinity I just knew that it was there because we made note of that point” (p.145); and
(2)there had been a white arrow on the roadway at the time they had taken the photographs and he had then observed that the blood trail commenced at a point between that arrow and a tree he had noted on the eastern side of the roadway. Both the arrow and the tree remained there when he visited with Coulter.
In cross‑examination, he was asked about the appearance of the blood trail as it travelled north from the resting point of the motorcycle. He said it had changed slowly: “it got just to one or two drops gradually further apart” (p.147). The size of the drops was about the same, but the distance between them changed. The trail did not veer gradually from its commencement down to the resting point of the motorcycle, but rather “started from the east (i.e. of the centre lines) and gradually came down to the middle and then veered off to the embankment” (p.148). When he returned to the scene on the Monday following, the commencement was not as clear, but he “knew where it started from anyway” (p.148). He was challenged as to that and described the trail this way:
“It hadn’t faded but you could still see there was a drop there. You couldn’t tell if it was blood or, you know, water. It was definitely blood because it followed the same line as you can see in the photos.” (p.148)
He was challenged about the skid marks and the other debris which he had thought were connected with the accident. It was only after they spoke to the plaintiff in his hospital bed, that he realised the mirror was not from the plaintiff’s bike and he later worked out it was not connected with the accident, anyway, as it was the wrong type of mirror.
He had also later concluded that the two skid marks shown in the photographs did not likely belong to the motorcycle because:
(1)the broken handbrake lever suggested to him that only the foot brake could have been applied; and
(2)he doubted whether that it could have skidded, given the injury to the plaintiff’s right leg.
These were, perhaps, matters of opinion, but the defendant chose to test him on them and it was apparent he had some familiarity with motorcycle riding, anyway.
He was also asked his opinion about other debris, but I was not much assisted by that evidence and, indeed, for reasons which will emerge, I was not much assisted by any evidence as to the identity and position of debris on the roadway.
All that the cross‑examination of him and his wife really disclosed was that they had, at first, made some assumptions about the relevance of skid marks and debris on the roadway, which were later shown to be unfounded.
Mr Clyma recalled that a photograph had been taken of the road surface at the commencement of the blood trail, but it had not turned out because conditions were too dark. The area was shady.
He was challenged on whether he had discussed his wife’s evidence with her and he said they did not talk about anything that was going on in the court. He was asked whether he had a distinct memory of seeing a photograph which did not turn out. He said he thought he had seen a negative which was just black. The printer would not likely have developed a photo from it. He was pretty sure they had taken the photograph. All the negatives had been given to the plaintiff.
He was challenged as to the position of the tree at the crest of the hill which he had used to establish the point of commencement of the blood trail. He said it was not visible in the photographs, but he described its position as being near where he was standing. It was “sticking out of the embankment” (p.156). It was a small wattle tree. He then looked at the photograph number 5 of P2 and thought that it depicted the tree, although it had not been as big at the time. He could not be 100 per cent sure that it was the same one in the photograph, but it was pretty close to that point. He said that the commencing point of the trail was in a line between that tree and the white arrow shown in the photographs. He had fixed it on the first occasion he returned to the site, on the Monday.
He was pressed on the matter, but denied there was any blood on the western side of the centre lines and he “never saw a spray of blood anywhere over there” (p.158). It was put to him that the point of impact was 30 metres or so from the projected centre lines of Sunning Hill Road in a northerly direction, but he disagreed with that, saying that the blood went further uphill than that. It was suggested to him that, after the accident, the truck had been parked some 40 metres north of Sunning Hill Road and on the western edge of the roadway. He responded that there was nowhere for the truck driver to stop. There, there was only a small verge and that was at least 50 metres north. The truck had been stopped at the point they had walked to (i.e. over the crest). He agreed that the bend was a bad corner because of the combination of the crest and the turn.
Dr Michael Berce

The plaintiff called Dr Michael Berce, vascular surgeon. His qualifications were not challenged. He had been shown a report of Mr Henry Aust, Engineer, of 22 July 1999, which later became Exhibit P9, together with photographs attached to it indicating the commencement of the position of the blood trail. He had also considered documents relating to the injuries suffered by the plaintiff. On the basis of the information provided and assuming there had been some impact with the plaintiff’s leg whilst he was astride the motorcycle, he was of the opinion that blood would flow from the plaintiff’s leg immediately on the impact and would not likely have been trapped or contained within clothing. He agreed it would have taken a forceful blow to extract the lengthy flap of flesh that had been cut from the plaintiff’s leg. He said it was possible that such a blow might give rise to a spray of blood, but that would not necessarily happen. The blood would be already sitting in the tissue and its flow would be almost instantaneous. In short, he said, the only likely delay between the time of the impact and the time the blood made contact with the carriageway would be due to the time it took to fall from the plaintiff’s leg. He agreed that the relationship between the position of the blood on the roadway and the point of impact would, to some extent, be dependent upon the speed of the motorcycle.
He thought that, upon impact, there would be a heavy blood loss, in keeping with the heavy drops of blood shown in the photographs. “A fine spray may appear and be blown away but that would be a fine spray” (p.122), and whether it would occur would be conjectural.
In cross‑examination, he agreed that if the plaintiff’s boot had not been damaged, the blood flow would likely have been from the top of the boot and it would be in large drops.
He was challenged as to the position on the roadway at which the impact would likely have occurred and responded:
“I guess what I was explaining was that in my opinion the commencement of the blood trail in my mind represented the point of impact due to the heavy nature of the bleeding that would have occurred; it would have been instantly on the ground.” (p.123)
He considered that the position on the roadway at which the impact occurred, was likely connected with the point where the blood trail commenced.
Dr Berce’s report, dealing with the above matters, became Exhibit P5.
Statements Tendered
By consent, the plaintiff tendered bundles of two statements, each of Andrew Fidock and Craig Coulter, and I will summarise them briefly.
- Andrew Fidock
Fidock said he had known the plaintiff for eight to ten months before the accident. On the day in question, they were riding south along Main Road No. 96 and he was ahead of the plaintiff by about 200 metres. There is an open speed zone on that roadway. It was fine and sunny and the road was clear. He remembered passing a truck coming in the opposite direction and observed it was travelling at a normal speed. When he realised that the plaintiff was not following, he stopped and went back to find him lying back off his bike with his right leg over the tank. He said that “the truck was not within sight”. There was another person with the plaintiff, whom he thought was a motorcyclist.
He recalled a car and a trailer stopping, with a man and a woman. There was no mobile held by any of them and he therefore rode off quickly to Cudlee Creek to call an ambulance. He said that at this point, the plaintiff had tourniqueted his own leg and “had hooked himself up on the fence to elevate his legs ... Another person had given a sheet to David re covering his legs”. He did not speak to the truck driver and he took the plaintiff’s bike away afterwards. He saw the skid marks on the road and the trail of blood following them. He had returned to take photographs on the following Monday. These photographs became part of Exhibit P2. They did not directly assist in determining the point of commencement of the blood trail.
He said that during his ride, he was travelling mostly at 80 kilometres per hour. It was a winding road and he would periodically see the plaintiff in his rear vision mirror. He gauged that the plaintiff was travelling at about the same speed. He said he was travelling at about 70 kilometres per hour as he approached and drove through the bend where the collision occurred. He had seen the plaintiff about 200 metres behind him, soon before that.
- Craig Coulter
Mr Craig Coulter, a loss adjuster, described a visit to the scene of the accident on 19 February 1999, in the company of the plaintiff’s solicitor and Mr and Mrs Clyma. The Clymas pointed out to him where the blood trail had commenced and he marked the road with yellow paint, following the trail as they said it descended the hill. He also marked the tyre marks and the resting place of the motorcycle. He then marked the relative positions of mirror fragments and a headlamp.
He prepared the plan which became Exhibit P1 and in which he incorporated the markings indicated by the Clymas. He then measured the distances between various markings. Between the indicated commencement of the blood trail and the position of the headlamp debris was 16 metres. Between the blood trail commencement and the rest position of the motorcycle was 145.4 metres. He then identified various photographs he took and which were contained in Exhibits P3 and P4.
Other Documents
The plaintiff’s injuries were described in detail in Exhibit P16, being the report of his treating specialist, and in Exhibit P11, a booklet of 34 photographs of the injuries. Their nature and the extent to which such were relevant to liability, were not challenged by the defendant.
Henry Aust
The plaintiff then called Mr Henry Aust, a chartered professional engineer, and tendered, by consent, his reports of 22 July 1999 and 2 June 2000 (P9 and P10). His qualifications were not challenged and it emerged that he relied, in part, on the plans and measurements of the uncontested evidence of Mr Coulter, on various photographs of the scene and the motorcycle, and on the particulars of the plaintiff’s injuries.
He had also inspected the scene and described the roadway and various reference points. Proceeding upon the assumption that the blood trail commenced at the point indicated to Coulter by the Clymas, he was of the opinion that when the blood flow began (i.e. on the evidence of Dr Berce, when the impact occurred), the motorcycle was positioned to its left, or east of the double centre lines.
He reached that conclusion by the following process. He assumed from markings on the motorcycle that at the point of impact, it was likely leaning to the left as it negotiated the bend. He also assumed the correctness of Coulter’s placement of the start of the blood trail. He then calculated that, at 40 kilometres per hour, the maximum distance between the likely point of impact (hence the commencement of the bleeding) and the start of the blood trail would have been 10 to 12 metres and that it would have been covered in 0.9 to 1.08 seconds.
He then approached the dynamics of the motorcycle’s progress this way. He first assumed the correctness of the account given by the defendant, Mr Fowler, namely, that at the time of impact, the plaintiff had been travelling on or to the right, or west, of the double centre lines. In such a scenario, the motorcycle would have had to deviate, after impact, 0.81 metres laterally in the 10 to 12 metres it travelled to the beginning of the blood trail. He said such a deviation could not have taken place without dislodging the rider. The fact the plaintiff did not fall, meant that any deviation angle must have been less than that and, indeed, must have been a very slight one, indeed, for the plaintiff to have remained astride. He concluded that a level of deviation which was tolerable could only be achieved if, at impact, the plaintiff’s motorcycle was positioned further to the east than the double centre lines.
Such was his original opinion, but in the later report (P10), he took account of plans and further photographs taken by Coulter, additional information on the location of glass likely to have come from the motorcycle and some photographs of the defendant’s truck.
He then made further calculations on the length of time it would take blood to fall from the plaintiff’s leg to the road surface and, to that end, used additional assumptions about the likely height from the road surface of the blood source, as well as the speed of the motorcycle.
I will turn to those calculations in a moment, but the process of reasoning he undertook was similar to that expressed in his first report; that is to say, he purported to relate the commencement of the blood trail to a point of impact north of its commencement and to a tolerable angle of deviation, from that impact, from west to east. When I say “tolerable”, I refer to a change of direction that, in his opinion, would not necessarily have resulted in the motorcycle capsizing or the rider becoming dislodged.
In carrying out those calculations, Aust examined a motorcycle of the same model as that ridden by the plaintiff, calculated the likely height of the plaintiff’s boot rim above the ground, assumed the blood fell from about that level and calculated the width of the motorcycle’s foot pegs in a lateral direction. He also took account of further matters, including the width of the carriageway at the point of the crest, which measured 3.15 metres from the western-most edge of the western double line to the eastern-most edge of the western line on the west side of the road, and 2.91 metres from the eastern-most edge of the eastern centre line to the western‑most edge of the eastern side line. In addition, he established that the width between the outer edges of the two centre lines was 0.26 metres. He also relied upon a sketch of the truck dimensions prepared by the defendant’s expert, Mr Christopher Hall, Engineer, and tendered as Exhibit P8.
He spoke of his own observations of the scene and how the extent of the bend, occurring as it did at or near the crest, was difficult to appreciate without a site visit. For the purposes of his site visit, he relied upon the markings of Coulter fixing the point where the plaintiff contended the blood trail commenced and recorded that it was 0.55 metres to the west of the inner edge of the western centre line and 7.8 metres south of the crest.
He then had regard to his assumption that the plaintiff’s motorcycle was travelling at about 40 kilometres per hour and that the cycle would be leaning left as it took the bend. He had originally assumed a delay of about one second between impact and the blood hitting the ground, but in his later report had assumed (based on Dr Berce’s opinion, which he was asked to accept) that the blood flow at impact would be more or less instantaneous. Based upon his observations of the motorcycle and the position of the rider on it, the height from which the blood would fall from the plaintiff’s lower leg, would be between 550 and 600 millimetres. Acting on those assumptions, he calculated that the distance of travel between impact and the blood hitting the ground would then range between 3.7 metres and 3.89 metres respectively.
He then took another approach and took some in‑court measurements based upon the plaintiff’s indication of the position of the top of his boot rim and, assuming blood fell from this position, calculated that the height of the mid‑portion of the rim above the ground was likely to have been 650 millimetres. That meant a falling time of 0.364 seconds and a distance travelled of 4.05 metres. Next, he estimated that the height of the outer aspect of the rim above the ground was 700 millimetres. That meant a falling time of 0.378 seconds and a distance travelled of 4.2 metres. Finally, he estimated the height of the top of the rim of the boot at 750 millimetres, thus leading to a falling time of 0.391 seconds and a distance travelled of 4.36 metres.
I have already quoted his earlier estimates of height and distance, but his amended calculations meant that, moving from a height of 550 millimetres to a height of 750 millimetres, the variation in the distance travelled was between 3.7 and 4.36 metres. He thus concluded that the likely point of impact was between 3.7 and 4.36 metres north of the commencement of the blood trail, assuming the motorcycle had been travelling at 40 kilometres an hour in an upright position. The distance travelled would be slightly less with a modest angle of lean.
Using his words, Aust then “tested a scenario in which Mr Wardle’s motorcycle tyres were positioned on the incorrect centre line for his line of travel and then considered the possibility that ... his motorcycle could move from such a point of impact to the point at which the blood trail began in these relatively short distances of about 4 metres” (p.186), that is to say, without becoming destabilised.
He conducted a series of calculations placing the approximate point of impact in positions to the west of the centre lines of the roadway. He first considered a position where the centre of the motorcycle was over the western edge of the western centre line (in other words, just about to fully enter its incorrect side of the roadway). In that position, he considered that the outer edge of the centre right foot peg, which was roughly equivalent to the position of the outer aspect of the plaintiff’s right leg, would have been 1.12 metres laterally west from the beginning of the blood trail.Assuming, then, that prior to the impact, the motorcycle was travelling parallel to the centre lines, he considered the angles of deviation necessary to first bring it to the position where the blood began and, secondly, to then alter its direction of travel so as to again move south and parallel to the centre lines, leaving a blood trail consistent with the path described. On all those assumptions, he said the required angle of deviation, assuming a distance travelled of 3.7 metres, was 16 degrees 51 minutes and, assuming a distance travelled of 4.36 metres, was 14 degrees 24 minutes. That was the range of angles of deviation required.
He then concluded that in that range of deviation and travelling at 40 kilometres per hour, it would be “highly unlikely that a motorcycle could undergo those two changes of direction and maintain an upright position and generate a blood trail running parallel to the centre line of the road” (p.192). He agreed that he had not done any calculations for a motorcycle travelling other than in an upright position, but had the motorcycle been leaning to the left as it took the bend, the extent of the recovery needed would have been even greater and the chances of it performing that manoeuvre even less likely.
Following that same reasoning, but assuming that the wheels of the motorcycle were further to the west than that, the required angle of deviation would necessarily increase and the chances of the rider maintaining control would become even less likely.
Had the direction of approach of the motorcycle not been parallel to the centre lines of the roadway, but, instead, one coming in from an angle to the west of those centre lines, there would likely have been a greater extent of contact between the vehicles and a greater chance of the motorcycle capsizing.
He then went on to speak about the pieces of debris on the road and concluded that they did not help in determining where the point of impact was, although they might have been of some assistance in determining the distance in a southerly direction of the point of impact from the crest of the hill. Even then, however, it had to be assumed that they had not been carried or deflected by the vehicles or otherwise disturbed by other traffic.
He went on to say that, having examined the photographs of the motorcycle and the Exhibit P2 photograph 12, he was satisfied that the piece of debris shown in that photograph was part of the right front turn signal light assembly of the plaintiff’s motorcycle. It had an unusual shape and style and was specific, he considered, to that motorcycle and to its right-hand indicator. He was asked about the handbrake lever, but, properly as I find it, was not prepared to speculate about how it came to be where it was seen on the roadway after the accident. The defendant’s expert, Hall, also agreed, after some hesitation, that this could only be a speculative exercise. All Aust was prepared to say was that the position of the handbrake lever was not inconsistent with the approximate point of impact which he had assumed.
Having previously excluded the likelihood of the plaintiff’s motorcycle tyres being over the western edge of the western centre line of the roadway at the time of impact, or, indeed, any further west than that, I asked him whether he could make any better prediction as to how far to the east of that position the motorcycle needed to have been to maintain its stability. All he could say was that, on the basis of his other calculations, the position of the blood trail was “sufficiently far to the left of the centre lines to conclude that it is likely that the impact occurred on Mr Wardle’s correct side of the road” (p.203).
He had never examined the truck to determine which part of it impacted with Mr Wardle’s leg and hand, but from the measurements he had, he thought it was fairly certain that his hand had hit the side of the tray. He thought it was likely to have been a structure underneath the tray that caused the leg injury.
He went on to say that the extent of any deviation caused by an impact would depend on the sharpness or bluntness of the colliding surfaces. It was put to him that he had not expressed an opinion, as to the precise position of the point of impact on the roadway, which marked the level of tolerance of stability in the motorcycle, assuming an approach to the impact that was parallel to the centre lines and the consequent deviation and straightening that the blood trail demonstrated. He said it was not possible to fix such a point, but he was confident that, given the blood trail was 0.55 centimetres east of the centre lines and the right foot peg of the motorcycle protruded 0.31 metres from its centre lines, an eastwards displacement of 0.85 metres would not likely have been tolerated by the motorcycle over the relevant distance, without a loss of stability. He was asked to consider the scenario of the wheels of the motorcycle being on the eastern edge of the eastern‑most centre line. On that assumption, the angle of deviation was between 11 and 12 degrees and he still considered that it was “highly unlikely the motorcycle could have made that deviation” (p.211).
In cross‑examination, he was shown the photographs taken by the Clymas and it was put that he had said to them that the skid marks could be excluded as having resulted from the accident. He did not recall having made that remark. He thought he probably would have kept such an observation to himself, nor did he tell them of the unlikelihood of any connection between the mirror sections found and any mirror on the plaintiff’s motorcycle. He had, himself, first thought the mirror sections were connected because the plaintiff’s motorcycle had an apparently broken mirror, but had later accepted that that was an incorrect assumption. In any event, the position of the glass on the roadway was equivocal. As to the fragments potentially related to the missing right‑hand indicator of the motorcycle, he agreed they were in different parts of the roadway, but he had previously said that their position on the roadway could not be relied upon as supporting any asserted point of impact. He may have mentioned his conclusions about the debris at a conference where the Clymas were present; he could not recall.

He agreed that his opinions were based on assumptions that the blood trail ran, for the most part, parallel to the centre lines of the roadway and that the motorcycle was travelling at 40 kilometres per hour. He did not think the speed of the truck was of particular significance, but he took it to be 40 kilometres per hour. He went on to affirm that the crest and bend in question is a particularly bad one and potentially worse for somebody travelling south.
He agreed that if the blood trail had commenced on the western side of the roadway, then it was likely the impact would have occurred on that side. He agreed that if the blood trail did not run parallel with the centre lines after it commenced, then depending on which way it veered, it could mean that the recovery required of the plaintiff’s motorcycle from the moment of impact was either more or less demanding. If the blood trail simply veered eastwards from its commencement, that would make his conclusion as to the point of impact less reliable. He went on to say, however, that, mechanically, it was possible for the motorcycle to actually deviate to the west rather than the east, as a result of a contact of the kind which occurred here.
He was asked to assume that there was some impact between the plaintiff’s right hand and some part of the truck, and was asked whether that might have forced the motorcycle to steer to the right. He was reluctant to accept that, saying that motorcycle behaviour is complex and, potentially, the motorcycle could, in fact, go the other way. He appeared to prefer the proposition, however, that if the plaintiff was on a curved path, there would have been deviation to the left, more so if it was tilted that way. Correcting might involve more than steering and could involve moving body weight and position.
On the assumption the plaintiff’s speed was not 40 kilometres per hour, but 60 to 70 kilometres per hour, the angle of deviation would be reduced to between eight and ten degrees, but he did not think the motorcycle would be able to achieve such a deviation at that speed, because the velocity “starts to affect the situation ... and the plaintiff’s capacity to remain upright” (p.231).
Finally, he was tested on the stopping distance of a motorcycle. He said it depended upon when a particular brake was applied and the efficiency of that brake, in any event, as well as whether it was on a slope. Overall, though, he seemed to agree that a reasonably heavy brake application would stop the motorcycle in 20 metres.
He was also asked whether there was a hypothetical angle of deviation which a motorcyclist might be able to achieve without falling off. He said there was, but he did not know what it was.
THE DEFENDANT’S CASE
Timothy Fowler
Timothy Fowler was the driver of the truck and, at the time, was a 35‑year‑old diesel mechanic. He had subsequently trained and qualified as a police officer.
He described the day of the accident. The Datsun truck was owned by his father. He had driven it before and described it as having a flat tray on the rear with fold‑down sides, which were one foot high. There were parts beneath it. He said the tray of the truck extended beyond the cabin on each side by about six inches. He was asked whether there was equipment stored beneath the tray, but he did not remember it. His father had sold the vehicle some 18 months to two years after the accident.
On the day in question, he had been to Lenswood to pick up a swing and had taken it to Lobethal. He was returning to his father’s place at Redwood Park. He was the only person in the car, but his wife and some children were driving behind him in a Tarago van.
Prior to the collision, he was travelling at 25 to 30 kilometres per hour. He said that as he approached the crest of the hill near where the collision occurred, two bikes passed him going in the opposite direction at a speed he estimated as between 60 and 70 kilometres per hour. They were “noisy”.
He described his approach to the right‑hand bend and the crest of the hill and how he suddenly saw a third motorbike appear on his side of the road. He steered to the left to avoid it, and braked, but he felt an impact, albeit that he thought the rider had just clipped his mirror. At that moment, he was on his correct side of the road. He estimated the motorcycle was travelling at a speed similar to that of the other two which had passed him, that is, 60 to 70 kilometres per hour. He had tried to avoid the collision, but could not. The point of impact was south of the bend and south of the crest. At the moment of impact, his vehicle was on its correct side of the road and the motorcycle on its incorrect side. After the impact, he veered to the left, applied his brakes and eventually brought his vehicle to a halt off to the side of the road, just past a speed advisory sign facing his direction of travel. He identified that sign as one placed just north of Sunning Hill Road and he marked on photograph 6 of Exhibit P3 the position where his truck stopped.
He said he got out and his wife then pulled up behind him. He spoke to her and they then went straight down to where they could see the motorcyclist. He then described events as they occurred. First, his wife laid down the plaintiff. As she was doing that, he went to walk up to the nearby house to make a phone call. He then met a man from that house coming in his direction. He told him he wanted to make a phone call about the accident and the man said he had already made it. That man stayed on his property and did not come down to where the motorcycle was.
Fowler then returned to the scene. Another couple had arrived there. They were driving in a Holden with a trailer. He thought they had arrived a minute or two after the incident. He said a fair time afterwards, another motorcyclist, whom he thought was one of those who had earlier passed him, came back and later another one stopped there.
He saw his wife lift the plaintiff’s foot up and attend to his injuries. His wife was an enrolled nurse. He said he and the lady who had come in the Holden directed the traffic when the ambulance arrived. The ambulance officer said the police would arrive. He and one of the motorcyclists pushed the plaintiff’s bike into the driveway. He then walked up to the house and phoned the Tea Tree Gully police to see if they were coming, but they made it clear they were not. He later reported the accident at St Agnes.
Upon returning to the scene, he saw the ambulance had gone. He remembered walking up the road with the man from the house. He could not recall anybody else walking up with him. His wife had already gone. As they did that, he saw blood on the carriageway, then a trail. The trail began from the motorcycle on the eastern side of the road, but most of it was on the western side. It crossed the centre lines near Sunning Hill Road junction. He walked to the end of the trail and it stopped when it was about two feet to the west of the centre of the road and 15 metres from the crest, a position he described as near the Sunning Hill Road. When questioned further on that, he described the position as “slightly south, just near the southern boundary” (p.253) of Sunning Hill Road. He did not inspect the truck then, but when he got back to his father’s house, had a look at it. There was no real damage, maybe a few scratches, but he did not know whether they were associated with the accident. He said the tray sides were in the upright position at the time. He saw some blood on the vehicle, mainly on the piping below the tray where ropes are tied.
He agreed he had later gone back to the accident scene with Mr Hall, on 13 March 1998.
He was then shown the plan P1 and he marked a cross on it where the blood trail commenced. That cross was adjacent to the southern alignment of Sunning Hill Road. He said the point of collision was further north from that cross and he then marked that point with a circle. It was just north of the northern alignment of Sunning Hill Road. When shown a photograph, he said that the point of collision was just north of the speed advisory sign facing a driver proceeding north along Main Road No. 96 and just south of the white post that appeared in Exhibit 4, page 12. He thought that the collision was probably nearer to the white post.
Although he had driven along the road many times in the course of his business, that was his first trip there for the purpose of fixing any points in connection with the accident. He had not otherwise stopped at the scene to examine it since the day of the accident.
He was then referred to the report of the defendant’s expert Hall, (D3) and to photographs attached to that report, in particular, photograph “P1”. He said the red cone shown in that photograph was the approximate position where he stopped his truck after the accident. On the photograph “P3”, he identified the point of impact as being on the roadway between the 35 kilometre per hour advisory sign and the red cone shown in the photograph on the left. He was then asked what the cone in the centre of the double white lines represented and he said it represented “the vicinity where the collision occurred” (p.258). He said that was what he pointed out to Hall. He was referred to the photograph marked “P2” of the exhibit D3 and was asked (p.259):
“Q.When you were approximately in that position, I take it from your evidence that you had not yet seen the motorcycle coming towards you.
A.My best estimate, I wouldn’t be sure. All I know he was in front of me at that point there, I would say, I don’t know, I tend to think probably not, yes. I’m not really sure.”
He was then asked again about photograph “P1” and whether it represented the approximate point of impact and he said he did not know, he did not take the picture. Nevertheless, he thought that the scene it represented was fractionally north of the view he had at the moment of impact. He thought that the point of impact was two to three metres north of the speed advisory sign. It was not where the cone in the middle of the road is situated in photograph “P2”. He was not sure why that cone was in the photograph. He thought it might be for the guidance of traffic. He thought the point of impact was about a third of the way in, about a metre and a half on his side of the road from the centre lines, near the cone, about one and a half metres to the west of it.
He was tested about his previous evidence concerning the cone in the middle of the road and he said he had misunderstood the questioning. The accident was not in the middle of the road, but on his side. The cone in the centre of the road in “P2” did, however, represent the approximate position of the point of impact in a north‑south orientation, albeit that the point was actually a metre and a half to the west of that cone. That was his best recollection at trial of the approximate point of impact. He thought that the photograph “P2” made it clear that the red cone was two or three metres north of the position of the speed advisory sign. The approximate point of impact was in its general vicinity.
He did not know what the black arrow in the photograph “P2” meant, nor could he recall pointing out any other features to Hall. He thought it seemed like a split second between the time he saw the motorcycle and the time it collided. The motorcycle was wholly on his side of the road and, he thought, four to five metres away from him when he saw it. He had not seen the motorcyclist cross the double lines onto his side. At p.265:
“My best recollection was that I just remember the motorbike being there, just in front of me and just swerving. Now whether I could see the whole motorcycle and maybe not the wheel, I’m not really sure.” (p.265)
He swerved to miss the motorcyclist, but the motorcyclist did not swerve. When he swerved, his vehicle did not go off the road, but he later went off when he parked it. He was then asked (p.265):
“Q.How far west of the double lines was the motorcyclist when you first saw him.
A.I would estimate it at about 2 metres.
Q.About 2 metres.
A.Yes. When I first saw him he wouldn’t have been that far over. I would think about a metre, something like that.”
He described the motorcycle’s behaviour as veering further onto its incorrect side as he saw it approach. It was suggested to him that that scenario meant the motorcyclist was headed towards the front of his car, but he said “by that time I’d moved off”: he had been able to avoid a head‑on impact by his left‑hand swerve. Nevertheless, when he had swerved, to the best of his recollection, no part of his vehicle had gone off the roadway and he thought all four wheels of his truck were on the tarmac when the motorcyclist passed his window. He heard a sound as though the rider had clipped his mirror, but he could not recall any jolt.
As to the motorcyclist’s speed, he estimated it as being similar to the other motorcycles, but he could not say what speed it was exactly. The other motorcyclists had appeared to be doing 60 or 70: “I would have thought he would be doing something similar” (p.267). He was then pressed on that and said he could not accurately estimate what speed the plaintiff was doing, “coming at that angle” (p.267). He agreed he had gauged the speed of the other motorcyclists by the noise they were making. He said he thought he had passed the other motorcyclists at a point south of where the plaintiff’s motorcycle ultimately came to rest. He agreed that he had made the assumption that the plaintiff had been travelling at the same speed as the others and then he said that 60 to 70 was his estimate of the speed, that one could round that corner at that speed on a bike, anyway. He thought the motorcyclist might possibly have been able to avoid the collision if he had been going slower, but he did not know how significant speed was in the matter.
He was asked about his report of the incident to the St Agnes police station and agreed he would have given an estimate of 60 to 70 kilometres for the motorcyclist’s speed, had he been asked at the police station. It was then suggested to him that he had been asked that question and he had not given an estimate, but had said he did not know. He was shown South Australian Police Department Vehicle Collision Information Report No. VC96214978 (Exhibit P17). He agreed that it appeared to be a report relating to the accident and that it was his report. He agreed it recorded that he “suddenly saw the motorcycle around the bend and you pulled sharply to your left” (p.270) and braked hard. He did not know whether his vehicle left skid marks, but he would estimate his vehicle’s speed prior to the collision at 25 kilometres per hour. He agreed that the answer “999” to the question of the motorcycle’s speed prior to impact, meant “unknown” and he agreed that that must mean that he told the police officer at St Agnes that he did not know what had been the speed of the motorcycle. He was then challenged as to why he now maintained his present estimate and he answered:
“Well, my estimate at the moment is 60 to 70, looking back, and at that time I just reported it as I thought it was at that day.” (p.271)
He later added:
“... that’s the sort of speed I would have thought the other motorcycle would have been doing.” (p.272)
He could not answer the question why he did not offer that estimate to the police officer. He said:
“Well, I may have not, by that. If I recall he wasn’t - I don’t know - I didn’t know.” (p.272)
He did not consider, when he was at the scene, that it was important to fix an approximate point of impact and he only realised it would be important to do that six months ago when he realised he would end up in court. It had not occurred to him that there would likely be a dispute about it before then. Nothing had happened in the collision to suggest that the impact had occurred on his incorrect side of the roadway.
He recalled walking down from his vehicle to the scene of the accident. He said his wife had not initially parked her vehicle in the driveway of the house, but “because the kids were left up the top” he had later driven it down there “because I didn’t like them being away from where we were” (p.274). He did not recall there being another car in the driveway when he parked his wife’s car. The couple in the Holden sedan with the trailer did appear, but he did not know whether that was before he moved the van or after. He thought they had parked on the road.
He and his wife had reached the motorcyclist at the same time and he did not at first go up the driveway. He said his wife put the motorcyclist’s foot up, as she knew more about it, and when she had done that, he went up the driveway and it was then he ran into the man coming down. The man was European and in his fifties. Later, when he rang the police from the house, there were two women, he thought the man’s wife and daughter, in the house. He did not see another older person there.
He did not hear the motorcyclist screaming, but he heard him complain that the truck had not stopped. He denied that anything was ever said in his hearing, when he was with the motorcyclist, about him (that is, the defendant) being on the wrong side of the road.
He remembered walking back up the road after the ambulance had gone. The man from the house was there and there were others as well: “I think it may have been the couple that were there in the Holden. My wife had left, so, yes, from what I can recall” (p.278). Then later he said:
“The man and the woman were at the scene where the bike rider had gone off and was picked up by the ambulance, but walking up the road I don’t recall the man and the woman being there. I’m not saying they weren’t. I just remember the man from the house being there and I know my wife had gone at that stage.” (p.278)
He said he and the man were not actually following the trail of blood, they were just looking as they walked up the road, but he saw the trail. When they came to the start of the trail, “We just looked and carried on walking” (p.279). He was asked who the “we” referred to and whether there was anyone else looking with him. He said:
“A.     Well, there might have been. I don’t know.
Q.     You just said ‘we’.
A.     That is just a figure of speech.” (p.279)
He said he then carried on walking, got into his truck and left. He said nothing to anybody about the trail of blood or about its start, nor about the fact that it was on his side of the road, nor did anybody around him say anything about it. He agreed that the trail of blood, after veering away from the position where the motorcycle came to rest, continued in a northerly direction and followed substantially parallel to the double white lines, and he agreed it was probably half a metre east of the white line. It then got to a point where it crossed the centre of the road:
“It wasn’t a turn, but it wasn’t a slight veer. It just went on to that side of the road” in a “... gentle curve.” (p.280)
He was asked what the start of the trail looked like. He said it did not have a particularly significant appearance. The drops just started. They were not in a pool. Some of the drops were the size of a 10 or 20‑cent piece, some of them were more like a spray than actual drops. It was more like a “sprayed line” (p.281) all the way down to the point where the motorcycle stopped. The trail of blood was much the same all the way along. He realised now that it was of tremendous importance that the blood commenced on his side of the road, but he did not think about it then. He had only realised in recent times how significant it was and also because of his training as a police officer. He had been a police officer since March 1997.
It was then put to him that a man and a woman and two men from the house had accompanied him in his walk northwards from the position of the motorcycle. He remembered one man from the house and conceded there may have been others. He did not recall whether they were looking at the blood trail, nor that they stopped to look at the start of it. It was suggested to him that a female then said words to the effect that the accident must have been his (the defendant’s) fault because the trail was entirely on the motorcyclist’s side. He denied that anybody said that, nor that he made any response to the effect that he was always on his correct side. He did not recall the people continuing to walk north to the crest of the hill after that point. He said he had never moved his truck from the time he first stopped it and he did not remember anybody being with him when he looked at it. If anybody had, it would have only been the man from the house, “there was no‑one else there” (p.284). He did not ever see anybody looking at his truck.

He was then asked to assume that the point of impact was four metres north of the commencement of the blood trail and about 1.1 metres to the west of it, and that the motorcycle was travelling at 40 kilometres per hour prior to impact. Was the deviation possible whilst keeping the motorcycle under control? He responded in these terms:
“To then have struck the vehicle, have deviated, then four metres later be running parallel to the white line again, highly unlikely that that could occur at 40 kilometres per hour. The higher the speed the greater the distance that is required to enable you to make that sort of deviation. At something 20, 25 kilometres an hour it could be achieved but at 40 kilometres an hour it is highly unlikely.” (p.348)
He was then asked to consider what was a tolerable deviation, given the assumed commencement of the blood trail and the distance of four metres travelled from impact. He said there was some speculation about it, but over that distance, the deviation “couldn’t be too great because it requires both a change in direction one way and ... a change back ... it would have to be in the very small degrees and distances of, you know, in a rough estimate, of up to a maximum of half a metre. Even that would appear to be stretching it” (p.349-50). The distance of half a metre he was there referring to was a lateral distance shift, although he doubted that could be achieved.
The defendant’s account of the accident was put to him, in particular, that the plaintiff was four to five metres away when he first saw his motorcycle, and one metre to the west of the centre lines, and that the motorcycle then veered further to the west, to a distance of about two metres. If that had been so, he thought a collision would have been inevitable. He had been working on an assumption that the closing speed of the vehicles was 60 to 70 kilometres an hour, or 16 metres per second, with a reaction time of a second, and, in the above scenario, the defendant could not have responded at all to the situation, whether by swerving or doing anything. For the defendant to have veered left as he said he did, a longitudinal travel distance of about 30 metres would have been required unless the plaintiff was then in the process of veering to the left.
The plaintiff’s version of the accident was put to him and he agreed there was nothing in the description that “couldn’t have happened that way” (p.354).
DISCUSSION
Clearly, the plaintiff’s and the defendant’s witnesses gave widely differing accounts of the circumstances and location of the original impact between the motorcycle and the truck.
The common assumption was, however, that the plaintiff’s right leg was, in some manner, involved in that impact and the evidence of Dr Berce, to the effect that blood flow from his leg would likely have occurred immediately upon impact, was not really challenged. The principal issue at trial was just where it was on the roadway that the blood trail began. Working backwards from that point, there seemed to be a consensus between the experts that, given assumed speeds, an approximate point of impact could be deduced with some measure of confidence.
For his own part, whilst the plaintiff could describe the circumstances of the impact and its general location, he did not attempt to fix the latter point with any precision. Of course, his motorcycle came to rest a considerable distance downhill from that point, wherever it was, and, having regard to the circumstances of his injuries and his reaction to them, it is hardly surprising that he would not then have made any detailed observations.
His case, as to the location of that point, rested mainly on the evidence of Mr and Mrs Clyma. Each of them described the commencement of the blood trail as being at a point no less than 50 centimetres east of the centre lines and in the vicinity of the crest of the hill. Mrs Clyma observed as much on the day of the accident and it was still obvious when she returned there on the following Monday. It was at that time that she attempted to photograph it and fix its location against the position of trees and markings on the roadway. She said that point was later shown by them to Coulter, the loss adjuster, who noted it as point “A” in Exhibit P1.
Mr Clyma said that the blood trail commenced at that same point, which, he thought, was a metre or two south of the crest of the hill, and ran downhill mostly parallel to the centre lines, but 30 to 50 centimetres east of them. Standing at the point where it commenced, one could not see the roadway as it continued over the crest in a northerly direction.
That was the evidence on which the plaintiff’s case was founded. For his own part, the defendant described the point where the accident occurred. He marked it on the plan P1, and from that it appeared he was contending the point of collision was approximately 1.5 metres west of the centre lines (i.e. within the northbound carriageway) and approximately due east from the southern roadway alignment of Sunning Hill Road. When shown the photographs appended to Hall’s report (D3), however, he said it was in the vicinity of the cone shown in the foreground of photograph “P2”. That point appeared to be somewhat north of the position marked by him on the plan.
Mrs Fowler did not, herself, witness the accident, but her evidence as to hers and her husband’s stopping positions, tended to corroborate his account of events.
The respective positions of the point of impact contended for by the plaintiff and the defendant are thus markedly different in both east and west and north and south orientations. In the face of such a conflict, I have looked for independent physical evidence tending to corroborate one version or another. There was some such evidence here, but its value was, once again, affected by considerations as to the reliability of both lay and expert witnesses.
It fell into several categories, which I will now discuss.
1. The position at which the plaintiff’s motorcycle came to rest
This position was not disputed. The defendant contended that it was well beyond a reasonable stopping distance from the plaintiff’s claimed point of impact and hence it was more consistent with impact occurring where he himself claimed it did.
I was not persuaded by that argument. For reasons already touched upon, I am satisfied that the plaintiff’s account of unsuccessfully attempting to use first his handbrake, then his foot brake, then having to adjust his posture to apply the latter and applying it, should be accepted. It is consistent with the loss of his right handbrake lever at impact and the injury to his right leg. Further, although there was no precise evidence as to the times and reaction times involved in these manoeuvres, it can plainly be inferred that his stopping distance would likely have been an extended one. It was obvious, too, from the topography of the locality, that there were limited off‑road stopping areas along the eastern verge of the roadway as he travelled down the hill after impact.
Having said that, there was no evidence tending to negate the possibility that, allowing that the plaintiff faced all those problems and delays in bringing his vehicle to rest, he might have collided with the truck where the defendant said he did and still have come to rest at the agreed point.
Considered alone, then, the point of rest did not assist me either way in determining the point of collision.
2. The position of debris on or off the roadway
Notwithstanding the original observations of the Clymas as to particular items of debris on the road, it emerged later and/or at the trial that there were probably only two pieces of debris potentially connected with the collision, namely, the handbrake lever and a portion of a motorcycle indicator. The provenance of the latter item was, in fact, disputed, but I was persuaded that the plaintiff’s expert, Aust, had made a more careful observation and comparison of that item with the damaged vehicle than had the defendant’s expert, Hall, and I accepted his opinion that it had come from the plaintiff’s motorcycle.
Having said that, however, I was not persuaded that the position of either item on or near the roadway after the accident was of any help in understanding the position or dynamics of the collision. Aust was generally of that view, but Hall sought to argue that the position of the handbrake lever was more consistent with the defendant’s version of events.
I have already discussed that evidence and the obvious uncertainty surrounding the likely trajectory and disturbance in flight of any material separating from the motorcycle in consequence of the collision. In the end, Hall conceded that what he was saying about that object was speculation, and I find it to be so. I disregard it.
3. The presence of the blood and flesh on the truck
This was not seen by the Clymas when they inspected the truck at the accident scene. The defendant said that later that day, he saw blood on the tie bar below the tray and within a metre from the front of the tray. His wife saw “hardly any blood at all”, but said there was flesh on the tie bar. She said her husband became upset upon seeing her clean it off.
The circumstances of the accident, the broken handbrake lever, the injury to the plaintiff’s right hand and the relative heights of the tray and the motorcycle, compel the conclusion that there was, indeed, contact between the motorcycle handlebar and the tie bar of the truck, and I so find.
That conclusion does little, however, to assist in understanding the dynamics and position of the impact which led to the blood trail, i.e. the impact between some part of the truck and the plaintiff’s leg. Which part of the truck remained obscure. It was clearly a point below tray level, but it may have preceded or followed the handlebar impact, depending upon whether it was the front bumper bar of the truck, the cabin of the truck, the box beneath the tray or some other object.
There was no useful expert or other evidence which allowed me to draw any conclusions as to that point of contact.
4. The blood trail
It was common ground that there was a trail of blood extending to the north and west of the plaintiff’s position of rest and then straightening and proceeding in a generally northerly direction. On the plaintiff’s case, it continued north parallel to but east of the centre lines and, on the defendant’s case, it veered to the west and eventually crossed the centre lines.
The only witnesses who described and purported to locate its northerly commencement point, were Mr and Mrs Clyma and the defendant. The Clymas photographed the trail and showed its commencement point to Fidock. Unfortunately, however, the photographs depicted the blood trail at its southern end as it branched from the eastern verge of the roadway towards the centre lines and straightened up. From there, it proceeded northwards in a direction roughly parallel to the centre lines, but the photographs did not preclude the possibility that it then crossed those lines.
The northern commencement point of the trail was not depicted. The Clymas said that they had seen and attempted to photograph it, but their photograph did not come out or was not printed. Mr Clyma thought that that was probably because the camera had been pointed directly at the roadway surface itself, and conditions had been too shady or dark for a successful image to be recorded.
I will return to discuss the position of the commencement of the blood trail, at a later stage in these reasons.
5. The position of the truck after the accident
On the defendant’s account, he stopped immediately after the impact and pulled to the western verge of the roadway just north of the Sunning Hill Road junction. This was a point well south of the crest. His wife supported that account, saying she stopped just behind her husband’s car and that they both then walked back to the motorcyclist.
The Clymas gave quite a different account of these events, saying that the truck was parked well north of, and downhill from, the crest and they described their walk to its position after the accident.
I have already referred to other conflicts between those parties on matters pertinent to the accident and those conflicts fall to be resolved on credibility, but as to the resting position of the truck, there is some telling evidence which casts real doubt upon the reliability of the Fowlers’ account of where the truck stopped:
5.1the plaintiff himself said that after he came to rest, he could not see the truck, yet, had it been where the defendant described its parked position, on the plan and photographic evidence, he would likely have been able to see it;
5.2the plaintiff’s evidence as to this is curiously corroborated by the defendant’s own evidence. Mr Fowler proffered that when he first came up to the plaintiff, he heard him complain that the truck had not stopped. That seems an unlikely remark if the truck were then visible to him;
5.3Fidock, in his statement, described returning to the scene of the accident and going up to the plaintiff. He comments: “The truck was not within sight”;
5.4Mrs Clyma’s evidence that there were no vehicles ahead of them in the roadway at the time they were first alerted to the plaintiff’s plight;
5.5the Clymas described how their attention was drawn to the plaintiff’s presence by his screaming. On the plaintiff’s account, he did this as soon as he stopped and saw his leg wound. It follows the Clymas must have come upon him very soon after he stopped. Neither the defendant nor his wife mentioned this, yet it appears quite unlikely they would not have heard it from their asserted stopping positions or as they moved towards the plaintiff;
5.6a consideration of the evidence as to the relative movements of the Fowlers and the Clymas at the accident scene is instructive:
5.6.1Mr Fowler says that upon stopping, he walked downhill from his truck and met his wife on the way. They continued on to the plaintiff’s position, where his wife laid the plaintiff down. He himself then went uphill via the house driveway in order to summon help, but on his way up the driveway, he met a man coming down. That man was from the house and he told him that calls had already been made about the accident;
5.6.2that evidence is of particular significance because the Clymas’ evidence is to the effect that they first parked their car in that driveway, Mr Clyma went straight to attend to the plaintiff, who was alone, and Mrs Clyma immediately went up the driveway to the house, where, after some initial difficulty, she was successful in attracting attention and arranging for the police and other services to be contacted;
5.6.3it was not obvious from any other evidence that the incident was or would likely have been seen or heard by anybody in the house, so as to prompt such persons to initiate contact with the authorities and, in any event, such a consideration would fly in the face of Mrs Clyma’s evidence as to the small trouble she had in attracting the attention of anybody there;
5.6.4the conclusion is thus inescapable that Mrs Clyma was the first person to summon or cause to be summoned the authorities and it must follow that, by the time the house occupant met Mr Fowler somewhere down the driveway, Mrs Clyma had already returned to the plaintiff’s position;
5.6.5it then follows that Mr Clyma was with the plaintiff at his resting point before the Fowlers arrived there (there may have also been another motorcyclist there at that time. He is mentioned both by Mr Clyma and Fidock, but nothing more was heard of him);
5.6.6the conclusion that the Clymas were the first people to be with the plaintiff and to summon help is supported by other evidence:
5.6.6.1Mrs Clyma’s description of a van being parked behind her car when she reached the foot of the driveway after visiting the house: Mrs Fowler was driving a van and, although she had no recollection of another car being there ahead of hers, neither did she dispute it;
5.6.6.2Mrs Clyma says that when she reached the foot of the driveway, a man was walking to the accident scene from her right (this, on all the evidence, could only be the defendant) and that a woman (who could only be Mrs Fowler) was by then with her husband at the plaintiff’s point of rest. That evidence does not match the Fowlers’ description of how they approached the plaintiff, but to the extent there is such conflict, and for reasons I will discuss, I prefer without hesitation the evidence of Mrs Clyma as to this matter;
5.6.6.3had Mr Fowler stopped his vehicle where he claimed and his wife parked behind him, it would have been quite a short distance to walk from there to the plaintiff’s resting position. It is inconceivable that they would not have heard the plaintiff screaming and that the Clymas would have been able to do all they did, unnoticed by the Fowlers and before Mrs Fowler got to that position;
5.6.6.4the defendant said that his wife’s van was moved from its first stopping position because they did not like the children being left “up the top”. That description barely fits the claimed location of the van, i.e. parked behind the truck just north of the Sunning Hill Road junction at a position within sight of the motorcycle. It is rather more consistent with the van being parked, at first, at or near the crest of the hill. That, of itself, says something about the likely position of the truck, which was, on any account, ahead of it;
5.6.6.5the time, as I find it, that it took the defendant to reach the scene (after the Clymas) is consistent with the Clymas’ assertion that the defendant stopped and parked his truck some distance north of the crest. In that scenario, he would not have heard the plaintiff screaming and would have taken some time to walk to the crest of the hill, speak to his wife, then descend to the plaintiff’s position. Within that time it was possible for the Clymas to do all they did unseen by the defendant and for Mrs Clyma to meet the defendant at the foot of the driveway;
5.6.6.6I note that Mrs Fowler’s evidence infers that she was the first person to attend to the plaintiff and that the Clymas (“a man and a woman”) came minutes later, but her evidence, for the reasons already discussed, flies in the face of the Clymas’ evidence, which I prefer, and even, by inference, that of her husband. I do not accept it.
That view of the evidence bears out the Clymas’ claim that the truck did not stop on the southern side of the crest, but, rather, at a point well north of it.
That otherwise completes my discussion as to the physical evidence. I turn, then, to the evidence of the various witnesses and my general observations as to reliability.
Credibility
- the plaintiff
As to the plaintiff, apart from his general description of the impact occurring in the eastern side of the carriageway and just south of the crest, there was little more he could do to pinpoint its position. When he was first aware of the truck, its body was, he said, straddling the centre lines of the road and protruding onto the plaintiff’s side by two or three feet.
His evidence was challenged as to this and other matters, but nothing emerged which caused me to have any doubts about his general credibility.
- the defendant
As to the defendant, however, I had serious reservations about his reliability as a witness. I did not think he deliberately sought to mislead, but I am satisfied that he purported to reconstruct circumstances of the accident in terms favourable to his own cause. His reliability was tainted by a number of matters:
(1)his inability to recall details of his father’s truck, notwithstanding his claim that he had been in the habit of using the truck:
“… probably once a month, twice a month, that sort of - I might drive his vehicle four or five times in a week and not drive it for a month, that sort of thing.” (p.290)
In particular, he had no recollection of an equipment or spare tyre box being beneath the tray, yet, clearly, on all the evidence, including the photographs, one was there and it was quite prominent. At the least, he was a very poor observer and, given the circumstances of the injury to the plaintiff’s leg, one might have thought he would have taken some interest in the presence beneath the tray of an object such as that;
(2)he acknowledged that he had gone back to the scene of the accident with Hall in March 1998, but he had no recollection of taking the truck there, nor of it being present. He said he was not there when Hall inspected the truck; he thought it had been sold by then.
Again, it is obvious that he was wrong about that. According to Hall’s evidence, which I accept on this point, the truck was, indeed, brought to the scene on that day, whether by the defendant or somebody else, and the defendant was present when he photographed and inspected it;
(3)his evidence as to seeing blood on the tie bar of the tray was barely consistent with his wife’s evidence. She saw mainly flesh and, indeed, commented upon her husband’s reaction to her wiping it off the truck. His inability to recall such an incident struck me as quite surprising. Mrs Fowler’s evidence as to this had the ring of truth about it and I was persuaded that that was exactly what she saw and what the defendant also saw;
(4)on his account, at or before the time of the accident, the plaintiff was travelling 60 to 70 kilometres per hour. That evidence must be viewed with the gravest of reservations, and for these reasons:
(a)it appeared to be based upon his observations of two motorcyclists who had previously passed him, going in the opposite direction, at speeds he estimated to be the same. It then emerged in cross‑examination that his estimates of the speed of those vehicles were, in any event, based upon the noise they were making and also upon the speed at which he thought one could manage to round that particular crest on a bike, anyway. These were not reliable bases for estimates;
(b)on his own account, he did not see the plaintiff’s motorcycle until very late and he immediately undertook evasive action to avoid a collision. His ability to accurately estimate the plaintiff’s speed in such circumstances must be questioned;
(5)the reliability of that evidence is further compromised by his acknowledgment that when he reported the accident to the police on that day, he said he did not know what speed the motorcycle had been travelling at;
(6)I have already reached conclusions about the positions at which the defendant brought his truck to a halt after the impact and where his wife stopped her van. Necessarily, they involve a rejection of the defendant’s evidence as to this matter and they reflect seriously upon his credibility;
(7)he spoke about another couple arriving at the scene after him and his wife. That can only have been the Clymas. Once again, for the reasons already traversed, I am persuaded the Clymas were there before he got there. Accordingly, his evidence as to that reflects upon his credibility;
(8)he gave conflicting evidence as to the location of the commencement of the blood trail in a north-south projection. On one account, it was at the level of the southern boundary of Sunning Hill Road. On another account, it was “near Sunning Hill Road” and, on another account, it was 15 metres from the crest, a position which places it much closer to the point identified by the Clymas. Otherwise, he said the blood trail began some two feet to the west of the centre of the roadway, and I will come to that in a moment;
(9)when he was shown the report of his own expert, Hall, (D3), he was confused about the relevance of the cones shown in the photographs of that particular stretch of roadway where he said the impact occurred and his truck came to rest. He could not clearly explain their relevance and, whilst I would not be minded to unduly criticise him for not understanding or remembering what Hall was purporting to do by placing them on the roadway, his attempts to ascribe a meaning to the position of each were tainted by an obvious desire to reconstruct events;
(10)I have already quoted his evidence at page 259 of the transcript as to the view he had of the plaintiff when he was at the point shown in photograph “P2” of Exhibit D3. When asked whether he had seen the motorcycle coming towards him, he commented: “My best estimate, I wouldn’t be sure. All I know he was in front of me at that point there, I would say, I don’t know, I tend to think probably not, yes. I’m not really sure” (p.259). That amply demonstrated to me his inability to recall the dynamics of the collision;
(11)further to that, he said it seemed like a split second between his first sighting of the motorcycle and the impact, the motorcycle was only four to five metres away from him when he saw it. He had not seen it cross the double lines onto his side.
However viewed, that evidence is very damaging to his cause. If the point of impact was where he fixed it, then he had had ample opportunity to see the approach of the motorcycle over a much greater distance and, yet, he had failed to observe it. Conversely, had he been keeping a proper lookout, his late observation of it can only be explained by the fact that his view was obscured by the crest, that is to say, that the impact occurred, as the plaintiff says, very close to the crest;
(12)his evidence as to the position of the motorcycle, an in east‑west projection, when he first saw it, wavered. At first, it was two metres, then it was one metre, but veering further to the west;
(13)he gave the curious answer that, along with a man from the house, he walked uphill to the start of the blood trail and “we just looked and carried on walking” (p.279). To where, or why they did that, did not emerge. When challenged as to who the “we” were, he said it was just used as “a figure of speech”. That seemed to me a strange observation. On other evidence, his wife had already left the scene. There would appear to have been no conceivable reason for the man from the house to carry on walking from that point, but that evidence may possibly be explained by the Clymas’ accounts that they walked on from the blood trail over the crest to its northern side and then down to his truck;
(14)he had no recollection of any conversation with the Clymas at the point of commencement of the blood trail, nor of his claiming to them that he had always been on his correct side of the roadway. In one sense, at least, such an observation would have supported his position, in that it represented an early claim by him that the plaintiff was the offender. At first, he denied saying it, then he said he did not remember such a conversation. For reasons elsewhere expressed, I accept that such a conversation took place as the Clymas recounted it;
(15)there was then his evidence as to what occurred in the period immediately after he first saw the plaintiff.
On his account, he was able to successfully avoid an imminent head‑on collision by veering to the left within a closing distance of four to five metres. Accepting that statement, it would also seem inescapable that the plaintiff was, over that distance, able to correct his drift from east to west and either straighten or turn slightly eastwards in order to achieve the glancing blow which obviously occurred. On any account of the speeds of both vehicles, and having regard to the expert evidence, either manoeuvre was, practically speaking, impossible;
(16)further to that, he was confident that he had been able to complete this evasive manoeuvre without the truck wheels leaving the bitumen. That evidence barely accords with the known arithmetic. Although there was no evidence as to the widths of the carriageway at all points south of the crest, there was plain evidence that at the crest, the western carriageway was 3.15 metres wide between its internal and external white lines. It can be concluded from the plan and the photographs that that width cannot have broadened markedly further southwards, yet, for the collision to have occurred as the defendant described it and for his truck to remain on the bitumen at all times, that point of the carriageway must necessarily have been at least four metres wide. He said that the plaintiff’s motorcycle was already intruding onto the western carriageway by two metres, it is known that its pedals projected a further 0.31 metres further westward, and the width of the wheel base of the truck was approximately 1.7 metres;
(17)he acknowledged in the course of his evidence that when he was at the scene, he did not think it had been important to fix an approximate point of impact and had only realised it would be important some six months before the court hearing. That was a telling concession and it reflected the reliability of his evidence and the attempts at reconstruction I have commented upon.

For all the above reasons, I did not find myself able to confidently rely upon much of what the defendant said.
- Mrs Fowler
As to the defendant’s wife, she did not witness the collision and only purported to speak of where her husband’s truck and her van were parked afterwards, and of the attention she gave to the plaintiff. For reasons already discussed, I reject her evidence as to the respective positions of the truck and her vehicle.
- Mr and Mrs Clyma
As to the evidence of Mr and Mrs Clyma, I should say that, at first, I also had some reservations about their role in the matter, not so much because of their presentation in court, but rather because of their behaviour in the events immediately following the accident. Whilst their actions in stopping immediately to assist the plaintiff and get help were, indeed, praiseworthy, the extent of the assistance they later offered to him raised some questions as to their level of impartiality. There was nothing unusual about their re‑examining the scene after the ambulance had departed and, indeed, walking to the commencement of the blood trail and to the defendant’s truck, but the extent of the trouble to which they afterwards went, in order to assist the plaintiff, struck me as somewhat unusual. They returned to the scene the following Monday and took numerous photographs of features which they considered were relevant, including views looking in several directions, the blood trail, other road markings and items of debris. Mrs Clyma then prepared a booklet of photographs, attaching a legend to each particular photograph which expressed some opinion as to its relevance. Inter alia, they concluded, wrongly as it transpired, that certain skid marks and items of debris found on or near the roadway were related to the accident. Having done this, the Clymas soon afterwards visited the plaintiff in hospital and gave him that booklet.
I accept their evidence and that of the plaintiff that they were not acquaintances or friends at that time and, indeed, have not become so since, but their conduct might be described as unusually eager.
It was evident that Mr Clyma was a motorcyclist himself and perhaps he had some empathy with the plaintiff. It was equally apparent that Mrs Clyma was an efficient person and perhaps she had previously had some contact with accident investigation work of some kind. That did not emerge from her evidence, but, however viewed, their conduct, coupled with the photographs and their legends, demonstrated a desire to support the plaintiff’s position and I have taken that into account in assessing their evidence against the whole of the remaining evidence.
In the end, however, I was persuaded that they were genuine and reliable witnesses. Their evidence was not upset by cross-examination, they both appeared ready to accept the irrelevance of some of their earlier observations and, in those areas where their evidence conflicted with that of the defendant and his wife, and for reasons discussed, I preferred their accounts of things, which were, in any event, corroborated by the other evidence.
FINDINGS
- as to the blood trail
I return then to a consideration of the evidence as to the commencement of the blood trail. For the reasons canvassed, I unhesitatingly prefer the evidence of the plaintiff, Mr and Mrs Clyma and Fidock where it conflicts with that of the defendant and his wife. Their evidence was simply not credible or reliable.
It follows from this, and it may also be inferred in part from my findings as to the point of rest of the truck, that I am satisfied, and find, that the blood trail commenced at the point on the roadway described by Mr and Mrs Clyma and measured by Mr Coulter, namely, a distance of 30 to 50 centimetres east of the centre lines and 7.8 metres short of the crest of the hill.
That does not, of course, mean that the point of impact was on the eastern side, but, for the following reasons, I am in fact satisfied that it was:
(1)as to the respective positions of the vehicles on the roadway immediately prior to the impact, I prefer the evidence of the plaintiff over that of the defendant, for the reasons already canvassed;
(2)once the commencement of the blood trail is fixed where I have found it to be, the expert evidence, particularly of Aust and, to a substantial degree, of Hall, supports the view that it is unlikely that the tolerable deviation of the motorcycle could place that point on or west of the centre lines. I now discuss that evidence.
- on expert evidence
I have already discussed that evidence in detail, but it starts with the evidence of Dr Berce that blood flow would have commenced immediately upon impact with the plaintiff’s leg. That was an opinion of which Hall did not originally have the benefit, and, accordingly, he was originally of the view that one could not reliably fix the lateral position of the collision (i.e. in an east-west orientation) from any assumption as to the point of commencement of the blood trail.
Aust, however, concluded, on the basis of various assumptions and measurements which I am satisfied were established, that the approximate point of impact was 3.7 to 4.36 metres north of the commencement of the blood trail. He then concluded that the motorcycle would not have remained stable had it deviated, over that distance to the start of the trial, from a position on its incorrect side of the roadway. The angle of deviation necessary to achieve that and retain stability was not tolerable.
He was then asked to assume lesser angles of deviation as the notional position of the motorcycle moved further eastwards and across the centre lines. His ultimate conclusion was that the point of commencement of the blood trail was “sufficiently far to the left of the centre lines to conclude that it is likely that the impact occurred on Mr Wardle’s correct side of the road” (p.203). Put another way, he said, had the impact been on or to the west of the centre lines, it is not likely that Mr Wardle’s motorcycle would have retained sufficient stability to both recover from the impact and then correct its angle of deflection so as to travel southwards and parallel to the centre lines.
As I have noted, Hall had not been prepared to reach any conclusions about the east‑west orientation of the point of impact, largely due to his inability to make assumptions about the immediacy of the blood flow, but he did say in evidence that any deviation of the motorcycle, following impact, of approximately 15 degrees would likely result in a fall, whereas a deviation of five degrees would not necessarily produce that result. In further cross‑examination, he agreed that had the impact occurred four metres north of the commencement of the blood trail, a deviation of 1.1 metres at a speed of 40 kilometres per hour would very likely have upset the stability of the motorcycle.
In the end, he was not prepared to offer an opinion as to what might be a tolerable angle of deviation for a motorcycle travelling at that approximate speed, particularly given the fact that it first deviated and then resumed a position parallel to the centre lines, but he though the tolerable deviation “would have to be in the very small degrees … to a maximum of half a metre. Even that would appear to be stretching it” (p.350).
That evidence did not differ markedly from the evidence of Aust and, indeed, was not inconsistent with Aust’s opinion, given the assumption that the blood trail was approximately half a metre east of the centre lines.
CONCLUSION
For the above reasons, I am satisfied, and find, that, at the point of impact, the plaintiff’s motorcycle was close to, but on its correct, or eastern, side of the centre lines of the roadway and that the defendant’s truck was at that time partially on the incorrect side of the centre lines of the roadway for its direction of travel.
Having so found, it does not follow that the defendant was entirely responsible for the accident and, indeed, I find that the plaintiff contributed to its occurrence. There is ample evidence that he was an experienced bike rider, that the crest and bend were dangerous to negotiate and that the plaintiff well knew that. By any measure, his approach to it was negligent in that, either through speed or carelessness, he failed to keep his motorcycle as close as possible to the left‑hand kerb. Instead, he chose to negotiate the bend in a way which meant his motorcycle was very close to the centre lines of the roadway as he passed over and down the crest and turned left, in circumstances where, for most of that passage, he had no adequate view of oncoming traffic. Notwithstanding that the defendant was clearly infringing the law in crossing the centre lines, I am satisfied the plaintiff, well knowing the risks of that crest and bend, should have had some regard to the possibility that oncoming vehicles might, as it were, cut that corner or project in part over the centre lines. In positioning himself as he did, he courted that risk and it materialised.
The defendant’s manner of driving was, however, the substantial cause of the accident. He, too, knew the roadway and must have appreciated the high degree of risk he undertook in allowing his vehicle to cross the centre lines at that particular point.
I find that the plaintiff contributed to his loss to the extent of 20 per cent.
There will be judgment for the plaintiff for 80 per cent of his damages to be assessed.

[2002] SADC 15

22 February 2002